Cases: Private Attorney General (CCP 1021.5)

October 26, 2016

Financial Incentives Element Clarified In 1/1 DCA Unpublished Decision Which Is Now On The Books.

On October 2, 2016, we posted on Millview County Water Dist. v. State Water Resources Control Bd., an unpublished September 28, 2016 1/1 DCA decision which reversed a private attorney general statute fee award to a plaintiff, clarifying the nature of the financial incentives element of CCP § 1021.5 in the process. We can now report that the decision was certified for publication on October 26, 2016.

October 16, 2016

Voluntary Reduction By County Was Due To Retirement Of Certain Employees, Not Change In Methodology By Which Fees Calculated Such That Plaintiff Was Not Successful For 1021.5 Purposes.

California Public Records Research, Inc. v. County of Yolo, Case No. C078158 (3d Dist. Oct. 14, 2016) (published) involved a plaintiff’s challenge to the fees charged by the Yolo County Recorder’s Office. Eventually, the County did reduce fees voluntarily after the litigation based on certain senior staff members retiring, although the methodology for calculation of fees was not changed by the mandamus petition at all, which was denied on the merits through a summary judgment proceeding. Plaintiff then moved to recover $450,000 in attorney’s fees under the private attorney general statute on a “catalyst” theory (based on the voluntary County reduction in fees), but the lower court denied the request.

Plaintiff lost both merits and fee denial challenges on appeal.

As far as the fee denial, the appellate court reasoned that plaintiff was not successful in achieving its primary litigation objective through a change to the method in which County calculated recordation fees. Although it did voluntarily reduce fees when certain staff members retired, the litigation resulted in no change in the way in which it calculated fees. The fee denial was correct.

Plaintiffs successfully challenged a State Water Resources Control Board cease and desist order (CDO) in a water diversion case, which resulted in an affirmance in favor of plaintiffs in a prior published decision. Based on that result, plaintiffs moved to recover private attorney general fees under CCP § 1021, with the lower court awarding such fees for work on the prior appeal but denying fee recovery on other work efforts. Both sides appealed, the Board from the appellate fee recovery and plaintiffs from the denial of fees for other work.

The reason for the reversal was that plaintiffs failed to demonstrate with substantial evidence that the financial burden element, as articulated in In re Conservatorship of Whitley, 50 Cal.4th 1206 (2010) [one of our Leading Cases, #14], was satisfied. Quite to the contrary, one group of plaintiffs earned $1.6 million under a purchase agreement by the CDO result, while another plaintiff preserved an asset that would have become worthless absent the CDO challenge. Although plaintiffs vigorously argued that LA Police (a pre-Whitley case) on the financial burdens element dictated a different result, the 1/1 DCA decided that LA Police was not the right test based on the “financial incentives” test governing post-Whitley. In doing so, the appellate court relied heavily on reasoning from Summit Media, LLC v. City of Los Angeles, 240 Cal.App.4th 171 (2015), discussed in our September 9, 2015 post.

This case shows how unique factual circumstances can drive cases, especially in the attorney’s fees recovery area of the law. Hold on, this is a wild ride but not necessarily given the unique factual circumstances involved.

In City of San Diego v. San Diegans For Open Government, Case Nos. D068939/D069890 (4th Dist., Div. 1 Sept. 22, 2016) (published), a nonprofit corporation brought an ultimately successful validation action against City on a plan to levy a special tax to finance the expansion of the San Diego Convention Center. But, there was a “retro” hitch: nonprofit was a suspended corporation at the time that it filed an answer as an interested party, a fact known to both the nonprofit and its counsel, and a fact never revealed to the trial judge or the City—despite the fact that validation actions are governed by a very fast statute of limitations by prosecuting parties. Nonprofit, despite this nondisclosure and after prevailing, moved to recovery private attorney general fees under CCP § 1021.5, with the lower court expressing great concern about the nondisclosure but nonetheless awarding partial fees to the tune of $258,629.89 in favor of nonprofit and against City.

City successfully appealed the fee recovery in favor of the nonprofit entity. Although grounded in the specific facts at issue (but one of first impression), the appellate court reversed completely the fee recovery because it found that the nonprofit’s suspension during a critical statute of limitations time to respond, in tandem with the lack of candor by the nonprofit and its counsel, justified fully a denial of fees under a public interest-oriented statute.

In our March 6, 2015 post, we discussed a private attorney general fee award of a little shy of $722,000 to Mr. Weiss in a case where he successfully challenged the City of Los Angeles’ delegation of initial review of parking citations to an outside processing agency. We can now report that this litigant’s wins, both on the merits and on the fee award, were recently affirmed in Weiss v. City of Los Angeles, Case No. B259868 (2d Dist., Div. 4 Aug. 8, 2016) (published).

The City challenged the fee award on the grounds that neither a public interest was vindicated nor a significant benefit was achieved under Code of Civil Procedures section 1021.5. The appellate court rebuffed these challenges. Getting the right tribunal to review parking citations is an issue of public importance, a significant benefit was achieved by having the City to face accountability for this review (versus a private outside company), and City itself had to admit that the action resulted in a “complete change” in how it was doing things in this area. Fee award affirmed.

August 01, 2016

Significant Benefit Conferred When Law Enforcement Agencies Are Ordered To Implement The Law Correctly.

In Schmidt v. California Highway Patrol, Case No. B260643 (2d Dist., Div. 6 Aug. 1, 2016) (published), a class was certified and a writ petition granted in a case to compel the California Highway Patrol (CHP) to comply with Penal Code provisions to file certificates showing an arrest as a detention where a person is arrested and released in situations where no accusatory pleading is filed. The CHP did not comply with the appropriate Penal Code provisions, resulting in a writ of mandate requiring compliance with the law and awarding class representative $296,100 in attorney’s fees pursuant to CCP section 1021.5, California’s private attorney general statute.

State [Louisiana] Highway Patrolman talking with truck driver. John Vachon, photographer. March 1943. Lib. of Cong.

CHP’s appeal was unsuccessful both on the merits and in overturning the fee award. The appellate court found that the class action did confer a significant benefit on the general public given that the CHP was misinterpreting statutes designed to benefit the public. “Society as a whole benefits when law enforcement agencies properly interpret and implement the law.” Fee award affirmed.

Exotic Feline Breeding Compound v. Dept. of Fish and Wildlife, Case No. F070449 (5th Dist. June 22, 2016) (unpublished) involved the Department of Fish and Wildlife’s appeal of a $134,417 fee award under CCP § 1021.5 to a winning nonprofit devoted to preserving exotic animals on a wide scale basis. However, nonprofit cross-appealed claiming the fee award was not enough. Both sides went home disappointed on appeal.

Plaintiff nonprofit did meet the § 1021.5 criteria, especially given that the Fish and Game Code has a legislative mandate to shelter restricted live animals, such that the public interest factors were met. Plaintiff was successful in obtaining mandate to overturn a breeding zoo waiver denial relating to a permit for exotic animals. No one else was vindicating these interests. As far as financial burden, the cost of a permit was $3,000 versus the many, many hundreds of thousands to prosecute this matter as far as litigation expenses. Finally, plaintiff’s cross-appeal did not get every far given that the lower court was reasonable in determining that the awarded amount was reasonable on appeal, after taking into account many factors.

June 03, 2016

In Hillis v. City of Aliso Viejo, Case No. G051900 (4th Dist., Div. 3 June 2, 2016) (unpublished), plaintiff successfully contested a nonconforming traffic sign infraction against City, obtaining a dismissal of a criminal charge. Plaintiff’s father asked the City to remove the offensive sign, prompting plaintiff to file a class action to remove the sign. Eventually, the sign was removed.

Plaintiff then moved for attorney’s fees under the private attorney general statute based on his contention he was a catalyst for sign removal. He sought a little under $70,000 in fees, a request denied by the trial court.

The appellate court affirmed, in a 3-0 decision by Justice Thompson. Although the lower court agreed that plaintiff’s lawsuit was a catalyst for the sign removal, the problem was that no public benefit was vetted given that only one traffic sign was at issue. A cautionary message to the public entity is insufficient to satisfy the public benefit requirement of CCP § 1021.5. (Norberg v. California Coastal Com., 221 Cal.App.4th 535, 543 (2013).) The fee denial was sustained on appeal.

In Gray v. Superior Court, Case No. B269150 (2d Dist., Div. 3 May 31, 2016) (published), a person failing to stop at a red light partially won an automated camera traffic enforcement challenge, with the person filing to recovery attorney’s fees under the private attorney general statute because he vindicated public interests in a criminal case under Penal Code section 1466(b)(2). The trial court denied the fee request, which prompted an appeal to the Appellate Division. The Appellate Division concluded the fees did not implicate criminal defendant’s substantial rights such that the court’s order denying fees was not appealable or subject to writ relief.

Defendant did not win before the “second” appellate court (2/3 DCA). Because the denial of a fee request only involved personal property, the appellate court agreed that no substantial rights were at issue under section 1466(b)(2). Ultimately, the Appellate District did not abuse its discretion by refusing to award 1021.5 fees under the circumstances.

InRusso v. Bank of America, Case No. D067623 (4th Dist., Div. 1 May 17, 2016) (unpublished), borrower and lender won some sides of claims in an impound dispute, although plaintiff borrower eventually won $523.14 based on a contract with a fees clause after seeking $795,000 plus punitive damages. Lender had made two CCP § 998 offers for $100,000 and later $250,000 plus potential $115,000 in attorney’s fees, offers rejected by plaintiff. The lower court denied dueling attorney’s fees requests by both sides. Both sides appealed to no avail.

The appellate court affirmed.

As to borrower’s claims to fees under Civil Code section 1717 and Code of Civil Procedure section 1021.5, the trial judge did not err in concluding that borrower had very limited success so as to not prevail under section 1717 and that borrower was furthering his own interest rather than a broader public interest under section 1021.5.

The lower court’s conclusion that the section 998 offers were not made in good faith somewhat bothered the appellate court, which acknowledged that there is a split in thinking but adopted the view there is a good faith requirement to section 998 and that the trial judge must put itself in the shoes of both parties when evaluating the 998 offer. With this in mind, plaintiff rightfully rejected the offers as not being in good faith because plaintiff had a stroke at the time and impound account was eventually cancelled. Although the opinion did not discuss what lender had sought, borrowers’ request for $175,635 in fees was rejected at both judicial levels.

For intervening parties in suits with potential fee recovery in CCP § 1021.5 cases, San Diego Municipal Employees Assn. v. City of San Diego, Case No. D066886 (4th Dist., Div. 1 Feb. 9, 2016) (published) is a stark reminder that you must bring something material to the table—if not, you risk getting no or very minimal fees.

In this case, four employee labor unions intervened in an action on employees’ behalf asserting the same or similar arguments (with some nuances) as the municipal entities carrying the load in this case. After the case was settled, the unions sought to recover $1,785,147 in attorney’s fees under the private attorney general statute, CCP § 1021.5.

Both the lower and appellate courts said, eloquently and politely, naught!

The reason for the fee denial was not petty or punitive in nature. Rather, it was determined that the necessity element of section 1021.5 was not satisfied. Intervening parties, in situations where a public entity’s parallel advocacy was primary and might carry the day, must show they proffered significant factual and legal theories and produced substantial, material evidence which was not merely duplicative or cumulative to what was advanced by the governmental agency. That is the test adopted by the appellate court (Slip Op., p. 8), so, intervening parties, you are put on notice for your burden of proof in future section 1021.5 cases.

Need For More Expensive Out-Of-Venue Counsel Was Well Justified By Fee Claimant.

In Habitat and Watershed Caretakers v. City of Santa Cruz, Case No. H040762 (6th Dist. Oct. 6, 2015) (unpublished), both plaintiff and City appealed a lower court’s decision awarding plaintiff fees of about $250,000 (out of a requested $486,800 on the lodestar and about $30,000 for “fees on fees,” a 60% reduction on the fees on fees request) under California’s private attorney general statute, CCP § 1021.5. No one contested entitlement, just the amount of the fee award—City claiming too high, and plaintiff contesting the lower court’s application of a 50% negative multiplier on lodestar and the “fees on fees” reduction.

The lower court reduced the lodestar 50% for partial success ($226,725 total) and cut the “fees on fees” request by 60% as indicated above ($22,199.90, which gets to the “total total” of about $250,000) being reviewed.

Plaintiff got the better end of its challenge on appeal.

City’s appeal did not resonate because plaintiff did a nice job of showing it needed to obtain Oakland counsel out of the Santa Cruz area, given it could not find anyone else with the expertise or willingness to take a contingent basis. Plaintiff also used Mr. Richard Pearl as a fee expert to justify the higher hourly rates and demonstrate they were commensurate with rates charged by Bay Area practitioners. Also, the contingent nature of the representation justified a higher hourly lodestar rate.

However, the Sixth District was concerned with the downward adjustment of the lodestar for “partial success.” The problem is that the lower court may have confused not being successful with claims from not being successful with theories. Here, it looked like plaintiff did obtain success on all the claims, although it did admittedly lose on some theories/contentions. But this meant that the downward adjustment needed to be reexamined. While this was being done, the “fees on fees” determination should be reassessed, with the reviewing court somewhat alluding to its belief that the 60% cut was a little excessive in amount.

September 30, 2015

Winner Vindicated Important Right To Initiative Tenets And 1021.5 Fee Award Can Be Made Against Losing Individual Litigant.

In Bogan v. Houlemard (Campbell), Case No. H041246 (6th Dist. Sept. 30, 2015) (unpublished), one individual litigant, who was a proponent for an initiative on the Monterey County ballot, won a defense effort against another individual litigant’s mandate petition to get a dueling initiative submitted for voter approval. The winning litigant obtained a private attorney general fee award against losing individual to the tune of $86,909.34.

Disgruntled litigant did not win on appeal. The main reason was that the right to an initiative was a significant public benefit vindicated by winning litigant, who was pretty much vindicating it alone and with no indication he had any financial “skin” in the game. Put these factors together, and 1021.5 fees were justified. (Wal-Mart Real Estate Business Trust v. City Council of San Marcos, 132 Cal.App.4th 614, 622-624 (2005).) Also, nothing in 1021.5 indicates that a fee award cannot be made against an individual plaintiff, just as it can be made against losing corporations/governmental entities. (Adoption of Joshua S., 42 Cal.4th 945, 958 (2008).) Fee award affirmed.

In this and a companion appeal, the appellate court cut some surcharges to the trustee of about $345,000. Because of this companion ruling, the appellate court sent back a $187,900 fee award against trustee and in favor of beneficiary (his brother) under Probate Code section 17211(b). The surcharge cut might impact the lower court’s view of whether fees should be the same or different.

Petitioner won mandate based on a contract-based claim under a project agreement with Whittier, but not claims based on Proposition A violations, the public trust doctrine, and CEQA. Petitioner moved to obtain fees of $1,105,651.20 under CCP § 1021.5, but the trial and appellate said “no.” The reason was that vindication of contractual rights alone was not equivalent to vindication of a significant public right under 1021.5.

Here, the appellate court reversed an order denying in part a FEHA losing plaintiff’s motion to strike certain routine costs incurred after a CCP § 998 offer. In doing so, the appellate court determined that the expert fees awarded under 998 were proper because they do not have to survive the frivolous/unreasonable standard. (Holman v. Altana Pharma U.S., Inc., 186 Cal.App.4th 262, 282 (2010).) However, the award of other routine costs had to be reexamined to see if the action was frivolous/unreasonable/without basis after the state supreme court’s ruling in Williams v. Chino Valley Independent Fire Dist., 61 Cal.4th 97 (2015).

Last but not least, the court of appeal affirmed more than $159,000 in monetary sanctions against a party for discovery abuse, based on 30 reports from a discovery referee, but reversed as to another party not given adequate due process notice of the sanctions until a too-late point in one discovery referee proceeding.

Summit Media LLC v. City of Los Angeles (CBS Outdoor LLC), Case No. B255050 (2d Dist., Div. 8 Sept. 8, 2015) (published) is a nice addition to CCP § 1021.5 jurisprudence and also cautions a fee claimant to be careful what you put in merits declarations/settlement communications—the latter may come to “bite you” when it comes to subsequent fee proceedings.

In this one, Summit Media successfully challenged an illegal settlement agreement between two outdoor advertising companies to digitize many existing billboards. Summit Media then moved for significant recovery of attorney’s fees/costs under section 1021.5--$2.618 million for trial work and almost $235,000 for appeal work, totaling more than $3 million by the time of the fee motion. The lower court denied the fee request, determining that the financial burden on Summit Media was not disproportionate to its individual stake in the matter.

The Second District, Division 8, in an opinion authored by Justice Grimes, affirmed the fee denial.

A big problem for Summit Media was that it introduced merits testimony indicating that the action was a competitive game saver and possibly one commenced for its economic survival. But there was more—Summit offered to settle the litigation for $10 million in a settlement offer. Based on this, the reviewing court found more than enough support for the fee denial based on the Whitley cost/benefit analysis on the financial interest factor of section 1021.5. In a footnote, it found that no settlement evidentiary privilege prevented admitting the settlement offer for the limited purpose of assessing financial burdens and incentives under the private attorney general statute.

The nice aspect of this published decision, with respect to 1021.5 jurisprudence, is that it held a claimant seeking no monetary award could still be held to have an overriding financial interest and, separately, that even an “indirect” financial interest—in this case, competitive survival—certainly allowed trial judges to consider such an interest (gauging whether it was real or speculative in nature).

August 27, 2015

Neither A Significant Public Right Vindicated Nor Significant Benefit Conferred.

Not every vindication of a statutory right is worthy of private attorney general fees under CCP section 1021.5. Contra Costa County Deputy District Attorneys’ Assn. v. County of Contra Costa, Human Resources Dept., Case No. A140669 (1st Dist., Div. 3 Aug. 21, 2015) (unpublished) illustrates this principle in the 1021.5 area. There, the Deputy DA Association did obtain a writ of mandate where the County hired a deputy district attorney off an expired employment list in violation of Personnel Management Regulation 608, but did not obtain broader relief such as compelling the County to follow its PMRs. The lower court subsequently denied the Association’s request for an award of 1021.5 fees. The appellate court affirmed. It first determined that the abuse of discretion review standard applied, because the matter involved a factual determination of whether there was evidence of a widespread practice within county employment of extending employment lists in violation of the PMRs, something which the lower found did not exist. With this important standard of review in play, the reviewing court could find no systematic County violation of the PMRs given the violation only involved one deputy district attorney hiring. The appellate court also observed that not every statutory violation rises to the level of public importance, with trial judges required to realistically assess the significance of the right in relationship to the achievement of fundamental legislative goals. Beyond that, no significant benefit was conferred on a large class of persons given that the issuance of the writ for one hiring violation was not likely to significantly affect the County’s future hiring decisions. “Had the legislature intended to permit recovery of attorney fees in every case brought by a private entity or individual to compel a public entity’s compliance with a particular regulation or rule, we believe the legislature would have drafted section 1021.5 to state as much.” (Slip Op., at p. 10.)

In Ocean View School Dist. v. City of Huntington Beach, Case No. G049545 (4th Dist., Div. 3 July 24, 2015) (unpublished), petitioner OVSD sought decertification of a final environmental impact report (FEIR) approved by Huntington Beach (City) for a mixed-use “conceptual” project for property located at Beach Boulevard and Warner Avenue, bringing a CEQA mandate petition against City and the proposed project developer which sought decertification and requested attorney’s fees recovery under CCP § 1021.5.

City itself decertified the FEIR, triggering OVSD to move for 1021.5 fees. The trial court denied the request, finding that OVSD failed to show it did not have a pecuniary interest in the litigation given some hearing statements that OVSD might in the future have to incur $2 million to open a closed school in order to meet student needs if the project went through. OVSD argued that there was no formal project at the time of the FEIR, so any pecuniary interest was speculative, but the trial judge did not buy it.

Even under an abuse of discretion review standard, the appellate court agreed that a City representative at a planning commission meeting hearing had admitted that there was no formal project proposed, with an OVSD representative only suggesting the over $2 million financial repercussion if a closed school had to be reopened in the future. This was too much of a speculative pecuniary interest to result in a denial of 1021.5 fees to OVSD, given that CEQA litigation frequently qualifies for private attorney general fees and a pecuniary interest alone will not disqualify a litigant from recovering under 1021.5. (Lyons v. Chinese Hospital Assn., 136 Cal.App.4th 1331, 1352 (2006).)

The trial judge did properly deny the fee motion as to the private entity developer, because a private entity cannot be made to pay a public agency’s fees under 1021.5 (although not discussed, absent an indemnity arrangement). In remanding the fee request as against City, the appellate court did indicate that the trial judge could consider the City’s argument that OVSD did not confer a significant benefit, even though this argument had not been raised previously.

The stakes are somewhat high—OVSD had sought $127,741.22 in base fees and $8,625 for “fees on fees.”

July 24, 2015

On July 3, 2015, we posted on Willard v. Kelley, where the Fourth District, Division 3 in an unpublished decision affirmed the denial of attorney’s fees to a party in a candidacy mis-description dispute, ultimately determining that the party’s personal interest was not transcended for CCP § 1021.5 purposes. We now report that the decision was certified for publication on July 21, 2015.

July 10, 2015

Judgment Saying “Fees According To Proof” Did Not Determine Entitlement, And Winners Did Not Satisfy Private Enforcement Element Of 1021.5.

Property owners in Citrus Heights got involved in a dispute over a private easement and overlapping public easement, with the City actually getting involved and using an offer of dedication to create a public easement largely resolving the controversy. Winning owners then sought an award of attorney’s fees under CCP section 1021.5, a request which was denied by the presiding judge after a previous assigned judge had entered a judgment inclusive of language “For attorney’s fees and costs according to proof.”

The owners denied fees did not get a reversal on appeal in Pavan v. Walmer, Case No. C073012 (3d Dist. July 10, 2015) (unpublished).

Owners first argued that the presiding judge had no jurisdiction to deny the fee request given the “according to proof” language in the assigned judge’s judgment. The appellate court did not believe this phrase meant that the assigned judge had determined fee entitlement already, given that 1021.5 fee requests are usually considered at a postjudgment stage where five elements must be satisfied under the private attorney general statute. On the merits of the fee entitlement issue, the Third District found that the lower court correctly denied it on the private enforcement issue—with the record showing that the private enforcement of the offer of dedication was not really necessary given that the City defended it well in the overall case.

July 07, 2015

On June 14, 2015, we posted on Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa, Case No. E057589 (4th Dist., Div. 2 June 8, 2015), which was unpublished at the time. This decision dealt with the causation aspect of catalyst analysis under CCP § 1021.5. We can now report that it was certified for publication on July 6, 2015.

July 03, 2015

Not all political “victories” give rise to private attorney general fee recovery under CCP § 1021.5, as the next case illustrates.

In Willard v. Kelley (Woolery),Case No. G050340 (4th Dist., Div. 3 June 29, 2015) (unpublished), one political opponent (Willard) challenged a portion of his opponent Woolery’s candidate designation as “Orange County Treasurer/CPA” as being inaccurate because it was not his principal occupation. The trial court denied the petition, directed against the Orange County Registrar of Voters, based on the ground that Woolery’s stated occupation satisfied Election Code requirements. Woolery then requested an award of $8,320 in attorney’s fees under the private attorney general statute, a request denied by the trial court.

That determination was upheld on appeal, in an opinion authored by Justice Fybel.

The primary reason for affirmance was that factual accuracies relating to one candidate’s personal history, versus a battle over one’s views as a candidate, did not transcend beyond a candidate’s personal interests so as to confer a significant benefit to the electorate. (Hammond v. Agran, 99 Cal.App.4th 115, 121 (2002).) Fee recovery was properly denied in this one.

June 19, 2015

Fee Recovery Assessed Against County And Developer Equally Ruling Was Also Affirmed On Appeal.

Limited success in public interest cases is an important factor that can lead to a substantial reduction in fees awardable under California’s private attorney general statute, CCP § 1021.5. That is what happened in North County Watch v. County of San Luis Obispo, Case No. B255901 (2d Dist., Div. 6 June 18, 2015) (unpublished).

There, plaintiff won on two issues among a multi-pronged attack on eleven claims brought mainly under CEQA, but not obtaining a set aside of the EIR on a project in claims brought against the developer and County. Plaintiff then moved for recovery of attorney’s fees in the range of $268,000 - $312,000 (inclusive of a multiplier request), even though the trial judge asked for supplemental briefing and explanations mainly from plaintiff. Ultimately, the trial judge awarded only around a total of $66,380 (inclusive of a 1.3 multiplier fee portion) based on plaintiff’s limited success, split in assessment against the developer and County. Both plaintiff and County appealed, to no avail.

The limited success indeed was an important factor justifying the lower court’s reduction in the fee request to what was actually awarded. (Save Our Uniquely Rural Community Environment v. County of Santa Barbara, 235 Cal.App.4th 1179, 1183 (2015) [1021.5 fee request of $231,098 reduced to fee award of $19,176 where claimant only prevailed on one of six CEQA arguments].) The lower court also properly reduced the request for an award of 126.4 hours for “fees on fees” work down to 20 hours given that plaintiff only obtained ultimate fee compensation for 100 hours.

As far as County’s appeal, it was the agency whose decision triggered the CEQA proceeding in the first place, such that fee recovery was properly assessable. (Animal Protection & Rescue League v. City of San Diego, a recent 2015 published decision reviewed in our June 3, 2015 post.)

June 14, 2015

Ya know, some cases boil down to very simple principles, if not all of them. The next one is a case in point.

In Coalition For A Sustainable Future In Yucaipa v. City of Yucaipa, Case No. E057589 (4th Dist., Div. 2 June 8, 2015) (unpublished), petitioner lost a CEQA challenge to a shopping center, with its interim appeal deemed moot after the project died when Target backed out of the project. Petitioner moved for CCP § 1021.5 fees, arguing it was a “catalyst” for what happened.

The trial and appellate courts disagreed. The litigation was not a catalyst. Instead, Target lost interest in the project, such that petitioner did not satisfy the “successful party” much less causation elements of section 1021.5. Fee denial affirmed.

Animal Protection and Rescue League v. City of San Diego, Case No. D065178 (4th Dist., Div. 1 May 27, 2015) (partially published; fee entitlement, but fee amount/costs discussion not published) involved plaintiff arguing the need for a year-round guideline rope at the La Jolla Children’s Pool to protect harbor seals from humans. City, which was named as a respondent, finally answered down the line that the relief was warranted and that it erred in denying a Site Development Permit for an annual rope barrier. Plaintiff then moved for $123,243.75 in attorney’s fees under California’s private attorney general statute (CCP § 1021.5) and $555 in routine costs. The trial judge granted plaintiff $82,717.50 in fees and costs, inclusive of the $555 in costs.

Except for the $555 in costs, the fee/costs award was affirmed upon City’s appeal.

City’s main argument that it was not an “opposing party” for 1021.5 purposes, but this was incorrect because it was a named respondent and its actions were at issue. However, City’s real “spin” was that fees were undeserved because it confessed error early on. The appellate court disagreed, finding that this confession did not disqualify City as an “opposing party” and acceptance of such an argument would gut the catalyst theory of fee recovery. This determination was made in the published portion of the opinion.

In the unpublished portions, the Court of Appeal found the award of fees for pre-petition work was no abuse of discretion, although it did strike the $555 costs award because plaintiff conceded that it failed to file the necessary costs memorandum pursuant to California Rule of Court 3.1700(a)(1). However, the appellate court did indicate that plaintiff was entitled to costs and fees on appeal, remanding the additional fee determination to the trial judge.

In this one, an appellate court denied $300,000 in attorney’s fees against the State under a settlement agreement where “reasonable diligence” governed the fee entitlement. Given that the prevailing party determination was discretionary under this clause and no one obtained a complete victory, little wonder that Civil Code section 1717 principles required an affirmance of the result in this encroachment case. After all, “reasonable diligence” does provide a great degree of discretion as to who prevailed, with the lower court decision being entitled to deference on appeal.

This second case was one where plaintiff settled with one defendant, but had some technical victories as to the California Department of Education (CDE). Ultimately, however, plaintiff did not win as to CDE based on administrative exhaustion arguments. Although plaintiff sought $840,000 (2.5 multiplier on the lodestar), the trial court denied the request, a result affirmed on appeal. Reason: Plaintiff was not “successful” as against CDE, with a pragmatic standard showing plaintiff did not prevail in the case as to this particular defendant.

The third cause was an attorney’s fees award in a harassment injunction proceeding, with there being fee entitlement and no necessity to provide good faith as an element. (Code Civ. Proc., § 527.6; Krug v. Maschmeier, 172 Cal.App.4th 796, 803 (2009).) The appellate court rejected the idea that detailed billings are required as substantiation under California state law, because an adequate declaration from an attorney as to work will suffice. However, the reviewing court did reverse a 20% multiplier “bump” given that the case was not complex and not taken on a contingent basis—such that the lodestar factors adequately addressed any fee request and dispensed with the necessity of any positive enhancement.

In Merrill v. County of Lake, Case No. A140744 (1st Dist., Div. 3 May 21, 2015) (unpublished), plaintiff won a short-lived preliminary injunction in a challenge to a restrictive marijuana cultivation ordinance, but later lost at the demurrer stage. Plaintiff moved to recover lodestar fees and costs of about $74,000, a request denied by the trial judge.

The appellate court affirmed on three grounds. First, plaintiff ultimately did not succeed by failing to vindicate the constitutional challenge to the ordinance. Second, plaintiff failed to provide proof as to whether the challenge benefited the public or a large class of people, failing to submit evidence on the number of medical marijuana patients helped by the injunction. Finally, plaintiff failed to meet the financial benefit/cost element by failing to show that his personal interest did not prevail—the money he made from the marijuana crop harvest during the injunction was not disclosed so as to weigh it against the $74,000 in lodestar prosecution expenses.

May 10, 2015

However, Trial Judge Did Not Abuse Discretion By Reducing Lodestar And Awarding No Multiplier--$145,747 Fee Recovery Affirmed.

In Keep Our Mountains Quiet v. County of Santa Clara, Case No. H039707 (6th Dist. May 7, 2015) (published), a plaintiff winning a CEQA case—with the lower court acknowledging a development project was invalid without an EIR—was awarded $145,747 under CCP § 1021.5, but short of the requested lodestar of $176,184.50 and an additionally requested 3.0 multiplier (a total request of $308,322.87). Both sides appealed the fee award, and both sides went away with no more relief.

Under CEQA, a winning plaintiff does confer a significant benefit when a court says an EIR needed to be conducted—this was not a “minute” blemish, but a significant win requiring proper environmental assessments. The general public, too, was served given that biological resources and public roadway safety are matters of general interest. Finally, the nonprofit plaintiff organization only obtained indirect financial awards, such that the financial costs/benefits favored an award.

That took the appellate court to the amount of the award. The problem here was that the record showed no abuse of discretion. Plaintiff believed that the trial court was wrong because it found the partial contingency arrangement did not allow for a multiplier, but the reviewing court found no support in the record for this notion.

March 11, 2015

Attempts to Settle With Others—But Not The Right Agency—Did Not Carry The Day.

Plaintiff filed a petition/complaint aimed to make the California Department of Fish and Wildlife reopen a Riverside County mirage trail in an ecological reserve. The defense demurred, which was sustained after new California legislation allowed the Fish and Game Commission discretion to determine seasonal openings/closures of trails such that plaintiff’s lawsuit was moot. Plaintiff moved to recoup $100,000 in fees under CCP § 1021.5 against the defense. The trial judge denied the request on the basis that, although making some settlement overtures to the Department and the Attorney General, plaintiff did not attempt to settle with the Commission, the entity having ultimate decision-making authority.

The problem, as the appellate court perceived it, was that plaintiff did not attempt settlement efforts with the right agency. Because plaintiff was relying on the catalyst theory articulated in Graham v. DaimlerChrysler Corp., 34 Cal.4th 552 (2004), it was not determinative that settlement efforts were made with other agencies given that the Commission was the ultimate authority under applicable statutes to allow or disallow access to the trail. So, had plaintiff contacted the Commission, the dispute might have been resolved, with the trial court’s decision on this ground being no abuse of discretion.

Although we do not often post about trial court decisions involving fees and costs, Caleb Marker of Ridout Lyon + Ottoson, LLP in Long Beach sent us copies of the fees and costs rulings in Weiss v. City of Los Angeles, Case No. BC141354 (L.A. County Superior Court). They are worth synopsizing because Judge Chalfant did write detailed tentatives granting $721,994.81 in CCP § 1021.5 fees to Plaintiff’s attorneys, although taxing most of their requested costs. These tentatives do provide an interesting look into the judicial perspective on fees and costs motions.

In this case, Plaintiff achieved some success—but not all—in obtaining a mandate writ which basically decided that City of Los Angeles could not delegate the task of initially reviewing parking violations to an outside processing entity, with this outsourcing not following under the “home rule” authority of the California Constitution. However, some of Plaintiff’s claims were found to be moot or were dismissed and, in the mandate proceeding, the trial court found that the initial review by the outside entity was adequate and a form letter may be used to deny a challenge after initial review.

So, that brings us to Plaintiff’s motion for fees and costs. Judge Chalfant had no problem finding that Plaintiff was the “successful” party under Calfornia’s private attorney general statute because he did successfully challenge the outside processor’s initial review of parking tickets, meaning both City and outside processer should be jointly and severally liable for fees. An important right was vindicated by requiring City, as the issuing agency, to initially review parking tickets, which impacted a broad spectrum of motorists who park their cars in L.A and receive a ticket. Plaintiff had to bring this action because City had no interest in doing so, with Plaintiff not receiving any personal gain from the challenge.

The rest of the discussion focused on the lodestar, multiplier, and costs requests. Plaintiff initially requested a lodestar of $862,448.75 for the work of three firms. The trial judge did ask for supplemental briefing, because of a lack of detail in the fee requests—no time sheets and no attorney declaration explaining work efforts. Judge Chalfant did tax a substantial amount of requested costs, finding that postage, conference calls, photocopying, database legal costs, and travel expenses are not statutory costs which can be recovered.

After supplemental fee papers were filed, the trial judge then focused on the $859,898.75 lodestar request. He reduced this request for (1) unnecessary redacted entries at a uniform 80% markdown rate; (2) excessive conferencing activities between the different firms, (3) work in a separate federal case, (4) clerical work, and (5) block billing by one firm for a further 20% reduction. That brought the total lodestar down to $687,61.10. From that, however, Judge Chalfant made a further reduction of 30% for limited success, taking the sum down to $481,329.87. Then, he found a 1.5 positive multiplier was justified, such that the total fee recovery to Plaintiff’s attorneys was $721,994.81.

HAT TIP: Mr. Marker, thanks for sharing these tentatives with us because they are insightful on at least one concrete judicial perspective on how to approach fees and costs requests.

Plaintiff Was Not Successful and Defendant Fixed Problem Based on CLRA Pre-Suit Notice.

In Boling v. DTG Operations, Inc., Case No. G049360 (4th Dist., Div. 3 Mar. 2, 2015) (unpublished), plaintiff sued under the Unfair Competition Law (UCL) and Consumer Legal Remedies Act (CLRA) to recover damages for a small discrepancy between a county tax charge advertised on a car rental website and the actual higher charge based on renting a car from the Phoenix airport, although the rental company fixed the problem after receiving the pre-suit CLRA notice. Then, plaintiff moved to recover $37,443 in fees under California’s private attorney general statute and CLRA fee-shifting statute. Both the trial and appellate courts, politely we might say, said “no way.”

One must be a “successful party” to be entitled to fees under CCP § 1021.5, and plaintiff was not. He was also no catalyst, because the car rental company fixed the problem based on the pre-suit CLRA notice, not from the lawsuit itself. Also, plaintiff failed to show his action benefitted a large number of persons, other than an unproven discrete number using the Phoenix car rental service at the time. Finally, given the lower court found no damages were awardable to plaintiff (affirmed in a companion appeal), he could not be considered the prevailing party under CLRA, not to mention that his gripe was fixed by the alleged offending party.

City Ordinance Involved Penalty If Public Members Remain In A Public Park After Sunset.

In Coke v. City of Sacramento, Case No. C072866 (3d Dist. Feb. 5, 2015) (unpublished), Ms. Coke successfully challenged a $300 administrative penalty assessed against her for violating a City ordinance prohibiting the public from remaining in a public park after sunset. Earlier, she had been prosecuted for a criminal violation of the same ordinance but the City dismissed the criminal action before notifying her of the administrative fines. A trial court in a mandate writ proceeding vacated the $300 penalty on the ground Penal Code section 1387 prohibited a second prosecution for the same offense.

Ms. Coke then moved to recover attorney’s fees under CCP § 1021.5, California’s private attorney general statute. The lower court denied the request, based on the failure to show that an important public right was vindicated or significant benefit conferred on the public.

The Third District affirmed. No vindication of any First Amendment free speech right resulted from the vacatur of the administrative penalty; instead, plaintiff obtained a technical “victory” based upon a variant double jeopardy type of ruling. Although the case may have sent a “cautionary message to City,” there was no evidence of a widespread practice of imposing administrative penalties after dismissal of criminal charges—put another way, nice win for party of one, but no showing of an impact on a broader set of persons.

December 31, 2014

Reason Was That Plaintiff Was Not Successful Party As A Matter Of Law Under Catalyst Theory.

Plaintiff in Washoe Meadows Community v. Cal. Dept. of Recreation, Case No. A139197 (1st Dist., Div. 5 Dec. 30, 2014) (unpublished) obtained an attorney’s fees award of $119,313.50 in a CEQA mandate proceeding involving a challenge to relocation of a golf course based upon erosion from the Upper Truckee River. Plaintiff’s goal was to stop or suspend the relocation project, but this did not happen after some on-going correction of EIR deficiencies. The lower court agreed with plaintiff that it was a catalyst entitled to 1021.5 fees.

The appellate court disagreed as a matter of law, reversing the fee award. (By the way, as bloggers, we will indicate 1021.5 fee awards do get very strict scrutiny on appeal in our general experience.)

The First District, Division 5 determined that plaintiff was not a “successful party” for 1021.5 purposes. In its opinion, the plaintiff did not obtain primary relief as far as stopping or disrupting location of the golf course. Rather, causation was missing because the minor EIR deficiencies were corrected in the course of an on-going process—a “limited do-over” (nice catch phrase, no?) found insufficient to allow recovery under the catalyst theory.

This next opinion, Ashegian v. Beirne, Case No. B254020 (2d Dist., Div. 4 Nov. 19, 2014) (unpublished), is interesting because it deals with a first impression issue relating to the proper interpretation of Business and Professions Code section 6158.4(i), which allows a litigant to obtain a mandatory fee award for prevailing in an action involving a challenge to the propriety of legal advertising if fees are proper under Code of Civil Procedure section 1021.5 (the private attorney general statute), assuming “the court finds that the action has resulted in the enforcement of an important public interest or that a significant benefit has been conferred on the public.” (This “or” language would be of importance in the appellate court’s ultimate decision.)

The facts are that defendant attorneys successfully demurred to a plaintiff’s action challenging that the attorneys’ Internet advertising violated State Bar Act regulations. (As observed already, there is a fee-shifting provision for a prevailing party under this scheme.) The attorneys successfully demurred to the complaint on the basis that plaintiff failed to satisfy the procedural requirement by first submitting a complaint to the State Bar, a determination affirmed earlier in an unpublished appellate decision. However, attorneys then moved for fees under B&P section 6158.4(i), prompting plaintiff to send a CCP § 128.7 safe harbor missive in an attempt to coax withdrawal of the motion. In response, attorneys scaled back their fee request from $46,300 to $18,900 for fees only incurred on appeal and for “fees on fees” associated with the fee motion itself. The lower court granted the $18,900 “trimmed down” fee request and denied plaintiff’s request for 128.7 sanctions. Plaintiff appealed, obtaining a partial reversal on the fees order but not winning the challenge to the sanctions denial.

Acknowledging that a first impression issue was presented about whether fee entitlement was proper under B&P section 6158.4(i), the appellate court first determined that defendant attorneys, even though not plaintiffs, were just as entitled to fee recovery under the statute. However, it then had to confront the “or” language in section 6158.4(i), because the trial judge did find that there was an enforcement of an important public interest, but determined he did not have to find a significant benefit. The conundrum was that section 6158.4(i) incorporated fee entitlement under the private attorney general statute, which requires that both of these elements satisfied. In the end, the appellate court agreed that both elements had to be satisfied under section 6158.4(i), which set the stage for reversal.

Reversal was predicated on the appellate court’s determination that defendant attorneys could not show a significant benefit was conferred on the general public/a large class of persons as a matter of law. Rather, the prior opinion was unpublished, setting no precedent, and there really had not been many suits under the Internet advertising statute such that the “win” mainly benefited only the defendant attorneys themselves. POOF! went the fee award.

As far as the sanctions denial, that was no abuse of discretion. After all, defendant attorneys did trim down their fee request and the request was by no means unwarranted in nature so as to satisfy 128.7’s requirements.

A lower court denied a fee request entirely as to two litigants successfully opposing a preelection challenge to Measure N (a local Murrieta ballot initiative they proposed for removal of red light cameras in Murrieta), with the fee request directed against the plaintiff seeking to get the Measure removed from the ballot as well as the county and city. Litigants had sought to recoup about $129,000 in fees, requested to be enhanced by a 2 or 3 multiplier, under CCP § 1021.5—California’s private attorney general statute. (Actually, Measure N was approved by 57.26% of Murrieta electors at the general election.)

The appellate court disagreed with the lower court’s conclusion that the litigants were unsuccessful because they failed to engage in a postelection defense of the Measure’s legality (a type of prematurity argument). Instead, it found no language in section 1021.5 or published decisions supporting the view that litigants had to successfully defend Measure N in a postelection challenge before moving for fees. Rather, the litigants did succeed in keeping the Measure from ballot removal, which involved the enforcement of an important public right—proposing an initiative and then making sure voters were able to vote on it. (Wal-Mart Real Estate Business Trust v. City Council of San Marcos, 132 Cal.App.4th 614, 623 (2005).) Flynn, the party trying to derail consideration of Measure N by voters, did fall within the class of parties liable for 1021.5 fees.

On remand, the lower court was ordered to consider the reasonableness of the fees and multiplier requests against Flynn, although the fee denial and costs rulings were affirmed as to city and county.

November 18, 2014

However, Not All Was Lost--Fee Recovery Had To Be Reconsidered Under Catalyst Theory On Remand.

AG Land Trust v. Marina Coast Water District, Case No. H039559 (6th Dist. Nov. 17, 2014) (unpublished) is an interesting decision in the CCP § 1021.5 private attorney general area, the result largely depending on the unique procedural posture of the case.

In this one, a nonprofit plaintiff successfully challenged approval of a regional desalination project under CEQA. While an appeal was pending by the aggrieved water district, the lower court awarded plaintiff $1,285,510.90 in private attorney general fees, applying a 1.35 positive multiplier to the requested lodestar.

On appeal, however, the appellate court reversed because of mootness—California-American Water Company had withdrawn its support for the project. Technically, that meant the attorney’s fees award also went POOF!

However, not all was lost. Even though plaintiff was a non-prevailing party, the appellate court remanded to see if it could recoup fees under the catalyst theory embraced in such cases as Graham v. DaimlerChrysler Corp., 34 Cal.4th 553, 560-561 (2004) and Tipton-Whittingham v. City of Los Angeles, 34 Cal.4th 604, 608 (2004). So, there was life again—the matter was remanded for the trial court in the first instance to decide if fees were discretionarily proper under the catalyst theory.

October 28, 2014

The Sixth District has overturned a fee award to an unfortunate dental patient for injuries arising from negligently performed dental work because private enforcement of the public right vindicated was unnecessary – a predicate for recovery of fees under California Code of Civil Procedure, section 1021.5. Bui v. Nguyen, Case No. H039310 (6th Dist. Oct 28, 2014).

The patient received significant relief: $150,000 against Hi-Tech Dental, Inc., and $50,000 against Hi-Tech’s owner and dental assistant. Additionally, the patient obtained an injunction requiring the dental assistant to identify herself as a dental assistant, not a dentist, in advertising, and to refrain from wearing a white dental lab coat.

Notably, the trial court “found that a significant public benefit resulted from enjoining further violations of Business and Professions Code sections 17200 and 17500.” Also, the trial court found that private enforcement was necessary, and that in the interest of justice, attorneys’ fees should not be paid out of the recovery. Declarations submitted by plaintiff pointed to the unlikelihood of public enforcement.

So why was the fee award reversed?

The Court of Appeal rejected the declarations that pointed to the unlikelihood of public enforcement as conclusory and lacking in specificity.

According to the Court of Appeal, “[t]here was no substantial evidence presented from which the court could have reasonably concluded that the third criterion – necessity of private enforcement – had been met.”

“The applicant bears the burden of establishing each criterion required for an attorney fee award under section 1021.5, including the necessity of private enforcement [citation], and the court must ‘consider[] all circumstances bearing on the question of whether private enforcement was necessary.’ [citation].” (footnote 9).

Here, a CEQA petitioner finally forged a settlement with the City of San Diego over issuing a permit for the 2010 La Jolla Cove Fireworks Show without performing an environmental review. Under the settlement, City did agree to do a review for special events and discretionary park use permits on a project-by-project basis. For our purposes, the stipulated settlement—approved by the appellate court—included a fee award of $250,000 to the petitioner.

"Say the French, 'See Paris and die!' Make your home at La Jolla and Live, say I."

This was a receiver case in which a receiver was appointed to manage/list three apartment buildings of family law dissolution litigants locked in acrimonious proceedings. The litigants challenged the receiver's/his personnel's hourly rates, but did not present proof to show they objected to the general receivership order allowing compensation at usual hourly billable rates or that the work expended was unreasonable. They also argued that the receiver could not obtain costs after his resignation because no costs memorandum was filed. The problem with this argument is that the receiver's final report and account and right to compensation is governed by CRC, rule 3.1184, which allows for compensation upon a review of the final report—with no costs memo requirement being applicable (the general rule for obtaining costs in normal civil litigation under CCP section 1032).

October 16, 2014

Living Rivers Council v. State Water Resources Control Bd., Case No. A138723 (1st Dist., Div. 5 Oct. 15, 2014) (unpublished) has a nice discussion of the private attorney fee recovery elements under CCP § 1021.5 and also demonstrates how a carefully framed lower court fee award will be affirmed under the abuse of discretion review standard.

In this one, a nonprofit dedicated to maintaining the Napa River succeeded on one of three CEQA claims against the Water Resources Control Board, requiring the Board to consider groundwater delineations as a mitigation measure for purposes of formulating a policy to maintain main instream flows to protect fisheries. The nonprofit moved for private attorney general fees, asking for $602,211.23. The lower court awarded $445,000, based on the following “math”: (1) the correct lodestar for fees on fees work was $45,000 and the lodestar for merits work was $324,120; (2) a reduction of $57,450 was warranted on the merits work because nonprofit only partially succeeded; and (3) the adjusted lodestar would be augmented by a 1.5 positive multiplier based on the contingent risk taken by nonprofit attorneys who were only paid $70,000 before taking the rest on contingency.

The appellate court affirmed the lower court’s fee award.

Nonprofit was the prevailing party even if it was the court that came up with the groundwater delineations which led to the lower court grant of mandate, with nonprofit winning on a significant issue and with the nonprofit’s petition leading to the ultimate “relook at” ruling. Because CEQA benefits were vindicated, the “significant nonpecuniary benefit on the public” 1021.5 element was satisfied—the ruling required more review that looking at a “minute blemish.” There was no need for prelitigation settlement negotiations (although there were settlement talks) because the matter was not a catalyst case.

With respect to the amount of the award, the lower court correctly allowed hourly rates ranging from $140-$625, and it was no error to award a positive multiplier based on the contingency risk taken on by nonprofit’s attorneys.

The Board then made the public fisc argument—taxpayers should not have to pay private attorneys’ compensation. However, although this can be considered, it cannot be the basis for a rejection of 1021.5 fee requests altogether. The lower court felt the benefit from the case required an award on the “public dime.” (Horsford v. Bd. of Trustees of Cal. State Univ., 132 Cal.App.4th 369, 400 (2005); Rogel v. Lynwood Redevelopment Agency, 194 Cal.App.4th 1319, 1331-1332 (2011).)

October 13, 2014

On September 17, 2014, we posted on Indio Police Command Unit Assn. v. City of Indio, Case No. G050051, a Fourth District, Division 3 decision affirming a $102,900 CCP § 1021.5 award in favor of a police union association. This opinion discussed, among other things, the public interest and financial burden elements of section 1021.5 in union representative context. We can now report that the decision was certified for publication on October 9, 2014.

October 01, 2014

County Actually Voluntarily Made Refunds; Class Rep’s Getting Refunds To 11 “Overlooked” Persons Did Not Constitute Substantial Class Of Persons.

Puck. 1907. Library of Congress.

Kuklenski v. County of Ventura, Case No. B251956 (2d Dist., Div. 6 Oct. 1, 2014) (unpublished) involved a situation where a certain person who never sued brought a claim resulting in the County of Ventura offering refunds to persons who apparently were impermissibly charged for DUI blood draws, with the refunds also encompassing interest and removal of negative credit derogs for not paying the charges. Later, a class representative (a different individual) did sue, but the County gave him a refund (with interest) and then refunded 11 “overlooked” individuals brought to County’s attention through the class representative’s efforts. Eventually, the suit was dismissed, bringing an appeal on the merits and a challenge to the lower court’s refusal to award class representative fees under CCP § 1021.5.

The merits and fee determinations were affirmed on appeal.

With respect to the fees, the class representative was not the catalyst for the County’s refund decision—that was brought about by the actions of the initial individual who never brought suit. (The County gave the refunds despite denying a formal tort claim, with class representative not bringing a tort claim—something he should have done.) Although the class representative did provide a benefit for the 11 “overlooked” individuals, the trial and appellate courts determined this was not a substantial enough class of individuals to justify private attorney general fees.